The Defense of Marriage Act has been ruled unconstitutional, but gay wedded couples are still not receiving spousal benefits from the Department of Veterans Affairs. According to an Aug. 14 letter from Secretary of Veterans Affairs Eric Shinseki, the denial comes as a result of Title 38 of the U.S. code regarding veterans benefits, which defines marriage as the union between members of the opposite sex and is independent of DOMA. Shinseki was responding to an inquiry from Sen. Jeanne Shaheen, D-N.H., a co-sponsor of the Charlie Morgan Act that aims to amend the code to give married LGBT veterans the same spousal benefits as those in opposite-sex marriages.

The Washington Blade reports the details of Shinseki’s correspondence with Shaheen:

“Certain provisions in title 38, United States Code, define ‘spouse’ and ‘surviving spouse’ to refer only to a person of the opposite-sex,” the letter states. “Under these provisions, a same-sex marriage recognized by a State would not confer spousal status for purposes of eligibility of VA benefits. Although the title 38 definition of ‘spouse’ and ‘surviving spouse’ are similar to the Defense of Marriage Act (DOMA) provision at issue in United States v. Windsor, no court has yet held the title 38 definitions to be unconstitutional.”

Shinseki’s letter continues to say that the Department of Veterans Affairs is still working with the Department of Department of Justice “to assess the impact of the Windsor decision on the continued constitutional viability” of Title 38?s and VA’s obligations with respect to those statutes.

An earlier version of this article said the Obama administration had made a determination in the wake of the DOMA decision that gay couples are ineligible for these benefits. Josh Taylor, a VA spokesperson, said the review is ongoing. “No decisions on benefits have been made at this point,” Taylor said. “We’re working with DOJ to assess Title 38 after the ruling and no conclusions have been drawn from that yet.”

However, the letter does indicate that a gay couple that marries in one state, travels to another that doesn’t recognize the union won’t be able to receive veterans benefits if they apply for them there.

At the end of the letter, however, Shinseki writes that if the definitions offered in Title 38 are removed or deemed unconstitutional, the VA will be ready to update its systems to ensure veterans receive the benefits they deserve.

Meanwhile, the Charlie Morgan Act has been approved by committee and sent to the Senate floor. Shinseki’s letter says the Obama administration would like to see the measure approved, and Shaheen is determined to make that happen. “We can’t tolerate this type of discrimination, especially in the aftermath of a historic Supreme Court ruling that declared the Defense of Marriage Act unconstitutional,” she said in a statement Tuesday.

—Posted by Natasha Hakimi

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